This week in the High Court of Australia

This week the High Court will hear argument in four cases.

On Tuesday, 29 October 2013 the Court will hear argument in Reeves v The Queen, an application for special leave to appeal referred to the full court for argument as if on appeal.  The applicant was infamously dubbed “The Butcher of Bega” by the press.  The main issue on appeal arises out of his conviction for the offence of maliciously inflicting grievous bodily harm with intent, contrary to section 33 of the Crimes Act 1900 (NSW). This charge arose out of the performance of a vulvectomy.  The applicant had been prosecuted for the offence of female genital mutilation (section 45) but the jury had been unable to reach a verdict.  The alternative charge gave rise to the issue of whether or not the patient had consented to the operation (or more accurately, whether the applicant did not have an honest belief that the patient had so consented).  One question on the appeal is what is the correct test for consent in a criminal medical assault case, and in particular does it involve any of the ingredients of “informed consent” as applied in civil cases.  There is also a question of whether the CCA erred in applying the proviso, as well as a challenge to the sentence imposed by the CCA.

On Wednesday, 30 October 2013, the Court will hear argument in Kline v Official secretary to the Governor General, an appeal from the Full Court of the Federal Court of Australia.  Kline had twice nominated a person for appointment to the Order of Australia.  Those nominations had been unsuccessful.  Kline made an application under the Freedom of Information Act 1982 for access to documents relating to those nominations (including documents of a more general nature relating to such nominations, such as working manuals and policy guidelines).  At issue in the appeal is whether or not the documents sought related to “matters of an administrative nature” (in which case the FOI Act required access to be granted) or whether they related to the exercise of a substantive power and function of the Governor-General (ie the administration of the Order of Australia) in which case they were exempt from production.

On Thursday, 31 October 2013 the court will hear argument in Li v Chief of the Army, an appeal from the Full Court of the Federal Court of Australia.  The appellant was charged that he “created a disturbance by causing a confrontation” contrary to section 33(b) of the Defence Force Discipline Act 1982.  That section makes it an offence where a defence member “creates a disturbance or takes part in creating a disturbance or continuing a disturbance.” At issue in the appeal is whether or not the offence as charged is an offence created by section 33(b) (ie whether the words “causing a confrontation” were merely particulars of the charge rather than a substantive element of the offence).  Also at issue is whether the prosecution is required to prove an intention to engage in conduct that in fact creates a disturbance, or whether the prosecution must prove an intention to create a disturbance.

On Friday, 1 November 2013 the court will hear argument in ACCC v TPG Internet Pty Ltd, an appeal from the Full Court of the Federal Court of Australia. In this case TPG was prosecuted for various contraventions of the Trade Practices Act 1974 arising out of advertisements for ADSL2+ access.  The advertisements prominently promoted pricing such as “$29.99pm”, but included in smaller print other statements such as the fact that there was a minimum charge of $509.89, and that the pricing was available only if bundled with a home phone line rental.  At issue, in general terms, is the efficacy of the fine print in defending what would otherwise be a misleading “dominant headline”, as well as the extent to which awareness of the industry practice of bundling and set-up costs to arrive at a minimum price may be assumed for the purposes of assessing whether an advertisement is misleading.